# FILED July 18, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk DALE WHITFIELD LOFTUS, ) ) Petitioner/C ounter-Responden t/ ) Appellee, ) ) Appeal No. ) 01-A-01-9702- PB-00066 VS. ) ) Davidson P robate ) No. 90D-2478 ROBERT MARTIN LOFTUS, JR., ) ) Respondent/Count er-Petitioner/ ) Appellant. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE APPEALE D FRO M THE P ROBATE COUR T OF DA VIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE FRANK G. C LEMENT, JR., JUDGE
THOMAS C. BIN KLEY JEFFREY ZAGER TRABUE , STUR DIVAN T & DEWITT 25th Floor, N ashvill e City C enter 511 Union Street Nashvil le, Tennessee 37219 Attorney for Petitioner/C ounter-Responden t/Appellee KATHRYN G. BRINTON 43 Music Square W est Nashvil le, Tennessee 37203 Attorney for Respondent/Counter-Petitioner /Appellant

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: TODD, P.J., M .S. KOCH, J.- 2 - 

## O P I N I O N
The Prob ate C ourt of Da vidso n Cou nty s et the father’s support obligation below the amount ca lled f or in the chi ld support g uidelines. The father assertson appeal that the court sho uld have ordere d a more drasti c deviati on or should have terminated his payments altogeth er. The mother asserts that the court erred in deviating from the guidelines. W e affirm the lower court’s order.
I.
The parties were divorced by the Probate Court of Davidson County in March of 1991. In an agreed order, custody of the three minor children was awarded to the mother, with very liberal visitation privileges awarded to the fath er. In addition to all the m ajor holi days in alternate years, four consecutive weeks in the summ er, and another week

during the school year , the father wa s allowed t o have the children visit him two week nights, one weekend night and day each week and Sundays fo r three hours. Mr. Loftus agr eed to pay $778 pe r month in chi ld support. After the divorce the mother went back to work at amodest salary, and the father’s earni ngs grew substantiall y. In Dec ember of 1991 Ms. Loftus was offered a job that req uired her to t ravel from M onday morning t o Thursday afternoon each week. The parties ag reed to modify t he visit ation schedule s o that Mr. Loftuswould h ave cus tody from Monday morning w hen Ms. Loftus dro pped the children off at school, until Thursday afternoon when she got backto town. Theparties als o agreed that Mr. Loftus w

ould have the children on Saturdays from 9: 00 a.m. to 5:00 p.m. By the end of 1995 Mr. Loftus was earning $8,443.00 per month and Ms. Loftus earned $9,049.54 per month. On December 19 of that year Ms. Loftus filed a- 3 -

petition to increase the child support payment s. Mr. Loftus fi led a counter- claim for custody of the children. After a hearing , the partiesagreed that t he previous custody order should be modified t o award c ustodyto the parties jointly , but the prev ious visitati on schedule remai ned the same. The cour t set the amount of

child support at $1600 per month to be pai d by Mr. Loftus. The amount called for by the Tennessee Child Support

Guidelines w

ould have been $ 2400 per month.

II.
There is a r ebuttable presumpti on that the chil d support gui delines providethe c orre ct am oun t of child supp ort t o be p aid b y t he obligor parent. Tenn. Code Ann. § 36-5-101. The amounts list ed in the guidelines assume that one parent will have primary physical custody and that the other parent w ill havethe children for overnig ht visitat ion from Frida y to Sunday every other week , two weeks in the summer, and two weeks during the holidays throughout the year. Tenn. Com p. R. & Regs. 1240-2-4-.02( 6). The courts are allowed to deviatefrom the guidelines where overnig ht time is more evenly divided between the parents. Tenn. Comp. R. & Regs. 1240-2-4-.04( 2)(b). See Gray v. Gr ay , 885 S.W.2d 353 (Tenn. App. 1994); Koch v. Koch , 874 S.W.2d 571 (Tenn. App. 1993). W here the time is more evenly divided t he courts must make a case- by-case det ermination as t o the appropriat e amount of support. Tenn. Comp. R. & Regs. 1240- 2-4-.02(6). An upward deviation is allowed where the obligor

parent is not providinghealth insurance for the chi ldre n. Tenn. Comp. R. & Reg. 1240-2-4-.04(1)(a).

We are o f the opinion that the trial judg e’s determinati on of the appropriate amoun t of support should be affirmed. While Mr. Loftus argu es that he has the children a majority of the time, the facts do not supp ort that concl usion. Under the most extreme case, which ex isted for a time after 1991, he had thechildren thr ee nightsa week and during the day on Sat urdays. I n addition, the s ummer and holiday- 4 -

schedules remained the same. His ove rnight v isits amount to substantiall y more than the guidelines

contemplate, but M s. Loftus is still the primary custodial par

ent. She buys m o st of the children’s clothes; provides the m with health insurance; and since 1991, she has been inc reasingly able to curtail her travel schedule so that she spends more time at home. We also note that the nu mber of days the c hildren spend w ith Mr. Loftus is only

slightl y higher

than the number pr

ovided in t he final decree. Based, in pa rt, o n Mr. L oft us’ in crea sed c usto dy, the trial judge ordered a thirty-three percent deviation downward from the child support guideline s. Taking into acc ount the health in surance prov ided by Ms . Loftus, the devi ation amounts to more than one-thir d. We think the proper amoun t of child support under the se circumstances

addresses it self to the trial judg e’s discretion and we find no abuse of that discreti on in this cas e. III.

Ms. Loftus has also asked to be awarded her attor ney’s fees on appeal. In Ragan v. Ragan , 858 S.W.2d 332 (Tenn. App. 1993), we held that the cu stodial spouse should not have to bear the expense inc urred on behalf of the child w hen the father unsuccessfully

appealed the trial court’s support order. W e think this case is similar and we award Ms. Loftusher attorney ’s fees on appeal. On remand, the trial judge will set a reasonable fee for Ms. Lof tus’ attorneys.

The judgment of the court below is affirmed and the cause is remanded to the Prob ate Cou rt of David son Coun ty for fu rther pro ceedin gs in accordanc e with this opinion. Tax the costs on appeal to the appe llant.- 5 - _________________________________ BEN H. CAN TRELL, JUDGE
CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WILLIAM C. KOCH, JR., J UDGE